The opening day of Senate confirmation hearings for federal Judge Amy Coney Barrett was filled with speechifying, with Democrats on the Judiciary Committee previewing their line of attack on the Supreme Court nominee.
In her opening remarks, Barrett, currently a judge on the 7th U.S. Circuit Court of Appeals, stressed that the role of a judge is not to make policy, while Democrats focused almost entirely on policymaking.
President Donald Trump nominated Barrett on Sept. 26 to fill the seat of the late Justice Ruth Bader Ginsburg, who had died eight days earlier.
Senate Judiciary Chairman Lindsey Graham, R-S.C., predicted Barrett’s confirmation would likely pass the Senate on a party-line vote.
Here are the biggest takeaways from the first of four days of hearings.
1. Barrett View of Judges’ Role
In her opening statement near the end of the Monday hearing, Barrett stressed that the judiciary should take a restrained role in society.
“Courts have a vital responsibility to the rule of law, which is critical to a free society. But courts are not designed to solve every problem or right every wrong in our public life,” Barrett said. “The policy decisions and value judgments of government must be made by the political branches, elected by and accountable to the people.”
She went on to explain:
The public should not expect courts to do so, and the courts should not try. That is the approach I have strived to follow as a judge on the 7th Circuit. In every case, I have carefully considered the arguments presented by the parties, discussed the issues with my colleagues on the court, and done my utmost to reach the result required by the law, whatever my own preferences might be.
Barrett noted that if she is confirmed by the Senate, it would mark a few milestones—as the first mother of school-aged children to serve on the Supreme Court, the first justice to join the court from the 7th Circuit in 45 years, and the only sitting justice who didn’t attend law school at Harvard or Yale.
“I am confident that Notre Dame could hold its own, and maybe I could even teach them a thing or two about football,” she joked.
As some Democrats have attacked her Catholicism, she was open about her prayer life.
“I would like to thank the many Americans from all walks of life who have reached out with messages of support over the course of my nomination,” she said. “I believe in the power of prayer. And it has been uplifting to hear that so many people were praying for me.”
Barrett praised now-deceased Supreme Court Justice Antonin Scalia, for whom she clerked earlier in her career.
“Like many law students, I felt like I knew the justice before I ever met him, because I had read so many of his colorful, accessible opinions,” Barrett said. “More than the style of his writing, though, it was the content of Justice Scalia’s reasoning that shaped me.”
“His judicial philosophy was straightforward: A judge must apply the law as written, not as the judge wishes it were,” she added.
2. Election-Year Nominations
Anticipating the charge of hypocrisy, Graham addressed the Democrats’ complaint that Senate Republicans didn’t hold hearings for Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit, then-President Barack Obama’s nominee to fill the seat vacated by the 2016 death of Scalia.
“We are confirming a judge in an election year after the voting has occurred,” Graham said, later adding, “The bottom line is, Justice Ginsburg, when asked about this several years ago, said that a president serves for four years, not three. There’s nothing unconstitutional about this process.”
Graham said, “The bottom line here is that the Senate is doing its duty constitutionally.”
“As to Judge Garland, the opening that occurred after the passing of Justice Scalia is in the early part of an election year. The primary process had just started,” Graham said. “We can talk about history. Here is the history as I understand it: There has never been a situation where you have a president of one party and the Senate of another where the nominee was made as a replacement in an election year.”
I think there have been 19 vacancies in an election year, 17 of the 19 when the party of the president and the Senate were the same. In terms of timing, the hearing is starting 16 days after the nomination. More than half of all Supreme Court hearings have been held within 16 days of the announcement of the nominee: [John Paul] Stevens, 10; [William] Rehnquist, 13; [Lewis] Powell, 13; [Harry] Blackmun, 15; [Warren] Burger, 13.
Senate Minority Whip Dick Durbin, D-Ill., cited the reaction of Senate Republicans and Senate Majority Leader Mitch McConnell, R-Ky., after the death of Scalia.
“The speed at which Republicans are moving to fill this seat stands in sharp contrast to the approach taken by the same Senate Republicans the last time there was a vacancy in an election year in 2016,” he said.
He pointed to a poster behind him of the so-called “McConnell rule,” quoting McConnell saying in 2016: “The American people should have a voice in the selection of their Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president.”
“This rock-solid statement of principle was made 269 days before the 2016 election,” Durbin said. “Republican members of this committee fell obediently in line behind Sen. McConnell’s statement of principle. … It comes down to this, either the American people do get an election year voice regarding a vacancy on the Supreme Court or they don’t.
“In 2016, Sen. McConnell said, ‘Give them a voice.’ Now he says, ‘Don’t give them a voice.’ It’s a shameless, self-serving, venal reversal.”
Sen. Dianne Feinstein, D-Calif., the ranking member of the Judiciary Committee, noted there were just 22 days before the election.
“Voting is underway in 40 states. Senate Republicans are pressing forward full-speed ahead to consolidate a court that will carry their policies forward with, I hope, some review for the will of the American people,” she said, later adding, “I believe we should not be moving forward on this nomination. Not until the election has ended and the next president has taken office.”
3. Future of Roe v. Wade
While most Democrats focused on the future of Obamacare, Sen. Cory Booker, D-N.J., focused on protecting the high court’s 1973 Roe v. Wade decision that legalized abortion nationwide.
“Without Roe v. Wade, our country looks like people being denied the ability to make decisions about their own bodies, not just while they are pregnant, but being stripped of the right to plan for their futures,” he said.
Booker went on to claim that women who have miscarriages would be interrogated by law enforcement.
“It looks like women of color, low-income women, women living in rural areas who can’t just pack up and leave if abortion is restricted or criminalized where they live,” Booker said. “It looks like them being left with no options. It looks like state laws proliferating throughout our country that seek to control and criminalize women.
“It looks like the government interfering and making personal medical decisions. It looks like a country in which states may write laws that could subject women who have miscarriages to investigations to ensure they didn’t have abortions. In America today, people are scared.”
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Early in the hearing, Sen. Charles Grassley, R-Iowa, who is pro-life, noted how many times Democrats have made that same kind of claim.
“Democrats and their allies shouldn’t claim to know how any judge would rule in any particular case. Just look at history. The left slammed [John Paul] Stevens for his consistent opposition to women’s rights,” Grassley said. “They called Anthony Kennedy ‘sexist’ and ‘a disaster for women.’ They said David Souter would ‘end freedom of women in this country.’”
“Ultimately, the left praised these very justices that they attacked. Their doomsday prediction failed to pan out,” Grassley said. “Democrats and their leftist allies have also shown that there is no low that they won’t stoop to in their crusade to tarnish a nominee.”
4. Protecting Obamacare
Committee Democrats employed a disciplined focus, with each making some reference to protecting the Affordable Care Act, better known as Obamacare.
Most displayed large cardboard posters of constituents they said had health problems who would allegedly lose their insurance coverage if Barrett is confirmed.
“Look at this person, soon after enrolling in the expanded Medicaid program, she began experiencing debilitating pain in her ear, behind her eye,” Sen. Patrick Leahy, D-Vt., said of one of his constituents. “It led to a series of expensive medical tests and MRIs that would cost $6,000 each. She shudders at the thought of what would have happened without the Medicaid expansion.”
Leahy said it weighs heavily on the minds of Vermonters.
“They’re scared, Judge Barrett. They’re scared that your confirmation would rip from them the very health care protections that millions of Americans have fought to maintain,” he said. “They are scared that the clock would be turned back to a time when women had no right to control their own bodies and when it was acceptable to discriminate against women in the workplace.”
Sen. Sheldon Whitehouse, D-R.I., called Barrett a “judicial torpedo.”
“This Supreme Court nominee has signaled in the judicial equivalent of all caps that she believes the Affordable Care Act must go and that the precedent protecting the ACA doesn’t matter,” Whitehouse said. “The big, secretive influences behind this unseemly rush see this nominee as a judicial torpedo they are firing at the ACA.”
Grassley countered that it’s “outrageous” to presume to know how she would vote in a pending Obamacare case simply because of an academic paper she wrote criticizing a 2012 Supreme Court opinion upholding the law.
“Let’s set the record straight. … Democrats say her view was radical and a preview of how she might vote on the court,” Grassley said. “First, her comment dealt with a provision of the law that is no longer in effect. So, the legal issues before the court this fall are entirely separate.
“Moreover, her criticism of [Chief Justice John] Roberts’ reasoning are mainstream, not only in the conservative legal community, but well beyond.”
5. What Trump Had to Say
The president didn’t keep his views to himself and kept a running Twitter commentary during much of the hearing.
He was even critical of the amount of time Graham allotted to Democrats on the committee.
“The Republicans are giving the Democrats a great deal of time, which is not mandated, to make their self-serving statements relative to our great new, future Supreme Court justice,” Trump tweeted. “Personally, I would pull back, approve, and go for STIMULUS for the people!!!”
Although Republicans on the committee barely responded to the Democrats’ Obamacare attacks, Trump did.
He also took a verbal shot at Sen. Richard Blumenthal, D-Conn., who touted Obamacare, abortion rights, and gun control.
6. ‘Religious Bigotry’
During Barrett’s 2017 confirmation hearing for the 7th Circuit, Feinstein criticized her devout Catholicism, claiming “the dogma lives loudly within you.” Since Trump nominated her, many media commentators have also criticized her religious views.
Sen. Chris Coons, D-Del., cited the importance of preserving the high court’s 1965 Griswold v. Connecticut decision that upheld the right of married couples to buy and use contraceptives without government restriction.
“When you tell somebody that they’re too Catholic to be on the bench, when you tell them they’ll be a Catholic judge, not an American judge, that’s bigotry,” Sen. Josh Hawley, R-Mo., countered. “The pattern and practice of bigotry from members of this committee must stop. I would expect that it would be renounced.”
He specifically referenced what Coons had said.
“I can only assume it is another hit at Judge Barrett’s religious faith, referring to Catholic doctrinal beliefs,” he said. “I don’t know what else it can be, since no one has challenged [the Griswold decision]. It is not a live issue, and hasn’t been for decades. This is the kind of thing I’m talking about. And this is the sort of attack that must stop.”
7. Sasse’s Civics lesson
Sen. Ben Sasse, R-Neb., said it’s important to distinguish between civics and politics.
He mused on what had happened in going from the unanimous Senate confirmation of Scalia, 98-0 in 1986, and the nearly unanimous confirmation of Ginsburg, 96-3 in 1993, to what is happening in today’s hyperpoliticized climate of judicial confirmations.
“Some of what happened between then and now is we have allowed politics to swallow everything,” he said. “Civics is the stuff we are all supposed to agree on, regardless of our policy views. Civics is another way we talk about the rules of the road. Civics 101 is stuff like ‘Congress writes laws.’”
The executive branch enforces laws. Courts apply them. None of that stuff should be different if you are a Republican or a Democrat. Civics is the basic stuff we should all be able to agree on, like religious liberty is essential. People should be able to fire the folks who write the laws, and the voters can’t fire the judges. Judges should be impartial.
This is just Civics 101. Politics is different. Politics is the stuff that happens underneath civics. … Politics is the subordinate, less important stuff we can differ about.
8. Constitutional Roles
Sen. Mike Lee, R-Utah, said Barrett understands her role is not that of a legislator.
“We ourselves within the legislative branch have got to do a better job by focusing on the fact that the Constitution is not just a judicial thing. It is also a legislative thing. It’s also an executive thing. It’s an American thing,” Lee said, telling Barrett: “It’s one of the many reasons I will object when anyone, anytime tries to attribute to you a policy position and hold you to that. You are not a policymaker. You are a judge. That’s what we’re here to discuss.”
Sen. Ted Cruz, R-Texas, had a similar view.
“The framers of the Constitution deliberately set up a system of checks and balances so that nobody can become a Supreme Court [justice] without both the president and the Senate,” Cruz said. “Each was designed to check the other. That system of checks and balances limits power and protects the voters. Indeed, voters made a clear choice.”
Democrats and Republicans have fundamentally different views on the Supreme Court. Democratic senators view the court as a superlegislature, as a policymaking body, as a body that will decree outcomes to the American people.
That vision of the court is something found nowhere in the Constitution, and it is a curious way to want to run a country.
9. COVID-19 Concerns
Numerous committee Democrats noted that the Senate is unduly focusing on the Supreme Court, rather than on passing a COVID-19 relief package.
Yet, Senate Democrats blocked passage of a COVID-19 relief package last month. Last week, Trump announced negotiations with House Speaker Nancy Pelosi, D-Calif., had broken down and would resume after the election.
“Americans are worried about one thing above all else right now, our health,” Whitehouse said. “This hearing itself is a microcosm of Trump’s dangerous ineptitude in dealing with the COVID pandemic. Trump can’t even keep the White House safe.
Here, it is the chairman’s job to see to the committee’s safety. Though his words were reassuring, I don’t know who has been tested, who should be tested, who is a danger. What contact tracing has been done on infected and exposed senators and staff?”
Sen. Mike Crapo, R-Idaho, fired back.
“I’ve heard several of my colleagues basically say the Republicans are refusing to work on helping to address the COVID crisis,” Crapo said. “This coming from colleagues who just a month or so ago voted unanimously to filibuster a $500 [billion] to $600 billion COVID relief package in the Senate.”
A COVID relief package, I asked my staff to get me a quick summary of it, that put, as I indicated, somewhere between $500 [billion] and $600 billion into more small business loans; unemployment insurance; agriculture and farming assistance; Postal Service assistance; education assistance, both at the higher-education levels and at K through 12; health care assistance for pandemic preparation for strategic stockpiles, for testing, for contract tracing, billions for vaccine and therapeutic and diagnostic development; and the list goes on.
We were stopped from proceeding with this legislation by a filibuster of those who now accuse us of not wanting to try to do something. We stand ready, if you’ll simply let us go to the legislation and pass it.